How to File for Child Custody in Kansas

Four Parts:Applying for CustodyBuilding Your CasePreparing for TrialAttending Your Trial

In Kansas, custody determinations are split between legal custody (decision making) and residency (time the child lives with a parent). To seek custody of your child, you will need to bring an action in Kansas district court. If the action is contested, then you will need to prepare for a trial. Custody suits can be stressful and emotional, but the process is relatively straightforward.

Part 1
Applying for Custody

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    Consult with a lawyer. A lawyer can be a stable sounding board during a confusing and turbulent time. Even if you can’t afford a lawyer, at a minimum you should meet with a lawyer for a free consultation. Custody determinations are complicated and important. A competent attorney is invaluable.
    • If costs are a concern, some attorneys provide “unbundled services,” which means that they will provide limited services such as document preparation, legal advice, or coaching for a flat fee. Although not every state allows unbundled legal services, Kansas does.[1]
    • You may also want to contact Kansas Legal Services at 1-800-723-6953.[2]
    • If at any time you are confused about how to proceed, you should seek out a lawyer’s assistance. To find an experienced, local family lawyer, search your yellow pages or perform an internet search for “child custody attorney” and your city or county.
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    Confirm that you can seek custody. In Kansas, custody is reserved for parents. Grandparents, however, can seek legal guardianship of their grandchildren. The guardianship can be permanent or temporary.[3] Grandparents may also adopt their grandchildren in certain circumstances.[4]
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    Locate the appropriate court. If you are asking for a prior order to be changed, you will most likely return to the court that issued the order. If you are seeking an initial custody order, then the local district court in the county where your child lives. If you are seeking a divorce and custody order, then it must be in the local district court in the county where you or your spouse live.
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    Find the forms. The Kansas Judicial Council has published sets of forms for use in various situations at this website.
    • If you are seeking custody as part of a divorce, click on “Divorce with Minor Children.” Then click on the link to “Parenting Plan.” This is a “check the box” form. You will request either joint custody (to be shared with the other parent) or sole custody.
    • If you want to modify a judgment regarding parenting time, then click on that link. Then select “Motion to Modify Parenting Time.” This is a “check the box” form.
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    Prepare for filing. Once the appropriate forms have been completed, you will need to sign them. Any forms that have a notary block on them will need to be signed in front of a notary. Make 3 copies of all documents (4 if the other parent has an attorney).
    • You can find a notary in most banks, courthouses, or city clerk’s offices. You can also look for a notary in the White Pages of your phone book.
    • You will need to bring sufficient personal identification. A valid driver’s license with signature should suffice.[5]
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    File your documents. Give the original set of documents to the clerk of court. You can ask the clerk to stamp your copies with the filing date. The clerk will also need to sign your summons, which s/he will return to you.
    • If the other parent lives in state, you will need the “In State Summons” form. However, if the other parent lives out of state, then you will need the “Out of State Summons” form.[6]
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    Pay the filing fee. When you file, you may have to pay a filing fee. In Riley County, the filing fee is $195.00 for domestic relations cases.[7] This fee is uniform across the state and set by the legislature.[8]
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    Serve the other parent. Attach the summons to the copy of the documents for the other parent. The other parent must receive these documents within 90 days of the date you file your case. These can be provided to him/or by one of the following methods (note that none of them include you delivering them):
    • Service by the sheriff. For a fee, you may have the sheriff personally deliver on the other parent. Fill out a Request for Service form available from the court clerk.[9] The sheriff cannot personally deliver outside of Kansas. If the other parent lives outside of Kansas, then you will need to contact the sheriff in the county the other parent lives in to make arrangements.[10]
    • Service by mail. You may mail the documents by certified mail, return receipt requested.[11]
    • If you serve by mail, return the green “return receipt card” with the court clerk.[12] Keep a copy for your own records.
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    Wait for the answer. The other parent has 21 days from the date s/he was served with the petition to file a written answer. You should receive a copy of the answer. If you do not, call the clerk and ask if it has been received.

Part 2
Building Your Case

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    Understand what you need to prove at court. Kansas courts prefer joint custody[13] but ultimately must decide custody according to the “best interest of the child.” They look at a variety of factors.
    • “Best interest” factors include: the desires of the child’s parents as to custody; the child’s desire over who should have custody; the length of time the child has been in the actual care and control of a third party, and the reasons; the child’s adjustment to the child’s home, school, and community; the child’s relationship with each parent and siblings; and the ability of the parent to appreciate the child’s bond with the other parent and to nurture it.[14]
    • Other “best interest” factors include evidence of spousal abuse, whether a parent has been convicted of child abuse or is a registered sex offender, and whether the parent is living with anyone who has been convicted of child abuse or is a registered sex offender.[15] This list is not exhaustive. The court may consider anything it considers relevant.
    • There is a “rebuttable presumption” that it will not be in the best interest of the child to live with a parent who is a registered sex offender or who has abused a child. Also, this same rebuttable presumption applies if a parent is living with a registered sex offender or with someone convicted of child abuse.[16] A rebuttable presumption means that unless a parent introduces evidence to the contrary, the court will presume that it is not in the child’s best interest to live with that parent.
    • If your county publishes a “Family Law Guidelines,” read it. This document tends to point out parenting arrangements favored by the courts in the area, services available for families involved in the court process, and some other information about family law in the local jurisdiction.[17]
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    Request information. You can gather evidence to support your case in a process called “discovery.” During discovery, parties request documents in each other’s possession or control, and they can request that the other party answer questions, either in writing or orally.
    • Read the rules governing discovery, 60-226 through 60-237 et seq of the Kansas Statutes to learn about discovery techniques and processes in Kansas. In general, you will be able to make Requests for Production, which require the other party to hand over documents in its possession or control. You can also serve Interrogatories, which are questions the other party must answer in writing, and Requests for Admission, in which you ask the other party to admit or deny specific allegations.
    • You should think about what documents you want. Revisit the factors a court looks to when deciding a child’s best interests. Then think about how you can get supporting documentation from the other party using discovery.
    • To prove that it is the child’s best interest to live with you, you will need evidence that shows your bond with your child, as well as your appreciation of the child’s bond with the other parent. If you think the other parent has birthday cards, letters, or emails that you sent to your child, request that copies be provided for you to use. This evidence can show your love and care for the child even if you haven’t been living with him or her.
    • You also should think about what evidence you will need to rebut the other parent’s arguments. If the other parent claims you have anger problems, you should seek out witnesses who can testify to your level-headedness.
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    Make required disclosures. As part of discovery, you will be required to voluntarily disclose various sorts of information: financial affidavits, a list of witnesses you intend to call at the hearing, and any exhibits you intend to use.
    • Failure to make timely disclosure can result in the court disallowing the evidence at trial.[18]
    • If the other parent has an attorney, then make disclosures to the attorney.
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    Request a psychiatric evaluation. Depending on the issues in the custody proceeding, you may request that the other party or the child undergo psychological/psychiatric testing or be evaluated by a professional. The purpose of the exam is to identify potential psychological disorders as part of a holistic analysis of parenting ability.[19]
    • The testing is done to determine what type of arrangement would be in the best interests of the child. Contact your local family law self-help center or a service located in your local Family Law Guidelines for assistance with some of these.
    • The other parent can also request that you have a psychiatric evaluation. One common test is the Million Clinical MultiAxial Inventory, which is used to identify personality disorders using 175 true/false questions.[20]
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    Sit for a deposition. The other parent may want to depose you as part of discovery. This can be a stressful experience, especially if communication has broken down with the other parent and you anticipate his or her attorney will be hostile. You will also be asked potentially embarrassing questions about your finances, your job, as well as your home environment and criminal history. The attorney will be gathering evidence to use at trial.
    • A lawyer can help relieve some of the stress by preparing you for the deposition. You should meet and raise areas of concern, particularly aspects of your life that would suggest you are not a fit parent. Examples include felony convictions, domestic abuse allegations, as well as the lack of a permanent, stable home.
    • Your attorney should sit down for a mock deposition, during which she peppers you with questions. Afterwards, you can discuss how to refine your answers. Just the experience of going through one deposition prep could settle your nerves as you approach the real thing.
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    Participate in mediation. Either party can request mediation or the judge can order it without a request from either party. In mediation, a neutral third party attempts to bring the parties to an agreement on the issues. There is no need to bring any evidence because the mediator does not make any decisions.
    • A court can excuse a case from mediation if the court believes there is risk to either party or that mediation will be pointless.
    • The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial. If mediation is successful, the mediator will generally prepare the proper documents, obtain the signature of each party, and submit the documents to the court. If mediation is unsuccessful, the parties simply proceed to court.[21]
    • Typically the parents bear the cost of paying the mediator.
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    Schedule your trial. If mediation fails—or one party refuses to participate—then contact the clerk of the court to schedule your trial. The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time it will require.
    • You will need to provide notice of the hearing to all other parties. You can do this by preparing a Notice of Hearing or by sending a letter to the other party giving all details of the hearing (date, time, location, length of time, judge). Ask the clerk if your court provides a form for this.

Part 3
Preparing for Trial

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    Develop a trial strategy. If mediation fails—or if one party refuses to participate—then you should prepare for trial. You need to think about what the other parent will argue as well as how best to make your case. To find out the other parent’s strategy, take out a copy of the answer that was filed and read it. In the answer, the other parent will list why you shouldn’t have custody.
    • Honestly self-assess. This may be the most difficult part of seeking custody. In a contested custody case, the other parent will use anything potentially embarrassing or damaging against you. If you’ve had drinking, money, or anger management problems in the past, you should expect that those issues will be raised in a contested child custody hearing. You should think about how you can prove that you are able to provide a stable home environment for the child.
    • If you have had charges (or convictions) for domestic violence, child abuse, or drug abuse, then you should seek a lawyer’s assistance. A lawyer will know best how to prove that you have rehabilitated yourself.
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    Draw up a list of witnesses and exhibits. In court, you will need evidence to prove your assertions. A bare claim that “I have turned my life around” will be unconvincing.
    • Think strategically. You will want evidence to support each of your main assertions. Try to find the most forceful evidence. For example, if you want a witness who can testify that you have worked on anger issues, then having a co-worker testify would be more persuasive then having your current partner. The judge might assume that your partner will say anything to help you out.
    • Remember to subpoena witnesses to attend the trial. You can get a subpoena form from the court clerk. Fill out the requested information (such as the date and time of the trial, as well as its location) and either mail it to the witness or have it served by the sheriff.
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    Read the Kansas rules of evidence. Though the rules are complicated, you should try to achieve a general understanding of them. They may be found at Chapter 60, Article 4 of the Kansas statutes or at this website. If you have any questions about them, it is worth paying an attorney for assistance or instruction.
    • Family court has additional, special rules of evidence. You should also read up on them.
    • The most important evidentiary rule you will need to know is the prohibition on “hearsay” evidence. Hearsay is any statement made outside of court that is offered in court as the truth. For example, if the other parent testifies that someone told her you had a drinking problem, then the out-of-court statement is hearsay; it is being offered to show that you have a drinking problem. If you notice hearsay statements, then you should object to them.

Part 4
Attending Your Trial

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    Arrive promptly. Give yourself enough time to get to court. If you are unfamiliar with the courthouse or the parking situation, give yourself an extra hour.
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    Dress appropriately. Since you are asking the judge to give you full custody, you should look as professional and pulled-together as possible.
    • If you can wear a suit, then do so. If you can’t, then wear clean dress pants and dress shirt. If you can only wear jeans, then make sure that they are clean and in good repair.
    • Under no circumstances wear shorts, flip flops, tank tops, mini-skirts, or sagging pants. Borrow an outfit if you have to.
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    Deliver an opening statement. You or your lawyer will need to give the judge a roadmap of what the evidence will show. The opening statement should be brief, but should summarize what evidence will support your claim for custody.
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    Call witnesses. As the petitioner (the person seeking custody), you will present witnesses first. The respondent (the other parent) will then have an opportunity to cross-examine the witnesses.
    • Do not ask leading questions.[22] A leading question is a question that contains its own answer. For example, “You recently found a job, correct?” is a leading question. Instead, the lawyer should ask a series of questions, such as “Do you have a job?” “Where?” “How long have you been there?”
    • Ask witnesses to identify any documents you want introduced into evidence. You must first elicit testimony that a document is what you claim it is before it can be admitted into evidence.
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    Cross-examine the witnesses for the other side. The purpose of cross-examination is to either discredit the witness or to minimize the testimony by showing that the witness is biased or lacking in sufficient knowledge to testify about the matter.
    • You can impeach a witness with a prior inconsistent statement. If a witness ever praised you as a parent, then that statement can be introduced if the witness now claims on the stand that you are a bad parent.
    • If someone testifies that you and your child fight, then you can minimize the damage by highlighting how infrequently the witness sees you with your child.
    • Always try to remain calm. If you feel anger overwhelming you, close your eyes for five seconds and breathe deeply.
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    Deliver a closing argument. You or your lawyer will summarize your case, explicitly linking evidence to the best interest of the child factors provided in the Kansas statute.
    • Counter bad facts as best as you can. If you don’t have a clean criminal record, then concede that fact before highlighting the evidence that shows you have lived responsibly for the past several years.
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    Consider next steps. If you prevail, then you or your lawyer will have to prepare an order. Locate the appropriate blank form and complete it. Make 2 copies.
    • If you disagree with the judge’s ruling, you have 30 days to file a Notice of Appeal.[23] You should ask the clerk for the form and then file it in the trial court, the same as you filed your initial petition.[24]
    • If you want to appeal the ruling, then you are strongly encouraged to seek out the assistance of an attorney.

Sources and Citations

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Categories: Contracts and Legal Agreements | Children and Divorce